April 16, 2024— In a case highlighted by Law360’s Petition Watch, Kellogg Hansen client Living Essentials has asked the Supreme Court to clarify what a private plaintiff must prove to win a “secondary line” price discrimination case under the Robinson-Patman Act.  At trial, Living Essentials persuaded both a jury and the court to reject claims that it had violated the Act by offering Costco lower prices to buy its popular energy shots, 5-hour ENERGY®, than it had offered to certain wholesalers.  The district court explained that the wholesalers could not show they competed with Costco for the same customers, as required by Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc., 546 U.S. 164 (2006).  But a fractured panel of the Ninth Circuit, breaking from the decisions of other courts of appeals, held Volvo inapplicable.  The petition urges the Court to grant review because the decision “invites litigation that will punish the price competition that antitrust law aims to encourage.”

Living Essentials, LLC and its parent company, Innovation Ventures, LLC, are represented by Kellogg Hansen attorneys David C. Frederick, Daniel G. Bird, Collin R. White, and Kyle C. Bailey.

Read more in this report by Law360.